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NY Bar 2014 > Real property > Flashcards

Flashcards in Real property Deck (195)
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121

Implied equitable servitude - 2 elements

1. When sales began - subdivider had general scheme of residential development which included this lot.
2. Lot holder had notice of promise contained in all prior deeds.

122

Notice - 3 types
[AIR]

Potentially "imputed to D":
Actual - literal knowledge
Inquiry - neighborhood appears to conform to common restriction
Record - publicly recorded docs (*NY* he does not have record notice of prior deeds themselves)

123

ADVERSE POSSESSION - concept

"Possession for a statutorily prescribed period can, subject to conditions, RIPEN into title."

124

AP - 4 elements

COAH
Continuous possession
Open and notorious
Actual
Hostile

125

Does possessor's subjective state of mind matter?

MBE: Irrelevant
NY: Must have mistaken "good faith belief" that land is his. If he knows he is occupying 3rdP land - no AP!!!!

126

Tacking - including predecessor's possession time for SoL?

When there is privity - any non-hostile nexus. Not when there has been an ouster.

127

True owner afflicted by disability at INCEPTION OF AP

SoL doesn't run.
(N/A if afflicted after inception of AP)

128

REAL ESTATE CONVEYANCE
2 steps

Land contract.
Closing - deed becomes operative document.

129

Contract - SoF requirements

In writing.
Signed by D
Describe land
State some consideration

130

If actual size is less than size in K?

Specific performance
Pro rata reduction in purchase price

131

Exception to SoF in land Ks

"Doctrine of part performance"
Two of three --> specific performance for oral contract:
1. B takes physical possession
2. B pays all or part of price
3. B makes substantial improvement

132

Risk of loss in K?

MBE: Equitable conversion - "equity regards as done that which ought to be done". Therefore, BUYER bears risk of land destruction after contract.
*NY* So long as buyer is without fault, risk of loss remains with SELLER until buyer has title or takes possession.

133

Two implied promises in every land contract

To provide marketable title
Not to make any false statements of material fact

134

Marketable title is

Title free from reasonable doubt, free from law suits and the threat of litigation

135

3 circumstances which render title UNmarketable

Adverse Possession --> No "good record title"
Encumbrances --> No unencumbered fee simple
If the property violates an applicable zoning ordinance

136

General disclaimer of liability in K?

Does not excuse seller from liability for fraud or failure to disclose.

137

Contract contains implied warranties of fitness or habitability?

Nope! Buyer beware.
EXC: Implied warranty of fitness and workmanlike construction in sale of a new home by a builder-vendor.

138

DEED: Requirements for passing legal title
[LEAD]

Lawfully executed and delivered

139

Lawful execution of deed?

In writing.
Signed by Grantor.
Doesn't need consideration.
Unambiguous description of land (doesn't need to be perfect)

140

Lawful delivery of deed?

Grantor physically or manually transfers the deed the grantee.
Can use mail, an agent or a messenger.
Test present intent: Did grantor have the present intent to be immediately bound, irrespective of whether or not the deed itself has been literally handed over.
Express rejection of the deed: defeats delivery

141

Delivery with oral condition?

Oral condition void.

142

Delivery via escrow, seller dies before condition is met?

Still valid delivery.

143

3 types of deed

Quitclaim (worst)
General warranty deed (best)
Statutory special warranty deed (NY: "Bargain and Sale Deed")

144

Quitclaim deed

No covenants, no promise that seller has title!
(And contract is no longer effective post-closing!)

145

General warranty deed

Warrants against all defects in title, including predecessors.

146

6 typical covenants in general warranty deed

PRESENT COVENANTS
Seisin - he owns
Right to convey
No encumbrances
-----------------
FUTURE COVENANTS
Quiet enjoyment (re title)
Covenant of warranty (will defend)
Further assurances (will perfect title if turns out to be imperfect)

147

When does SoL start to run on deed covenants?

Present covenants: On delivery.
Future covenants: On breach.

148

Statutory special warranty deed
*NY* "Bargain and Sale Deed"
2 promises:

Grantor has not conveyed to anyone else
Free from encumbrances by grantor
(No reps re predecessors)

149

RECORDING SYSTEMS
Two different jurisdictions

Notice jurisdiction
Race-notice jurisdiction

150

NY is a ?. Jurisdiction

Race-notice jurisdiction